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Ground 1: the court erred in its approach to the “Bugmy” principles

16. The passage of his Honour’s remarks on sentence which is the subject of this ground of appeal is at paragraphs [75] – [82]:

“[75] The offender contends that given the history contained in psychologist’s report the court would be satisfied that the offender suffered from a deprived upbringing so as to engage the principles set out in Bugmy v The Queen (2013) 249 CLR 571. The High Court in Bugmy referred to experiences of “growing up in environment surrounded by alcohol abuse and violence” [43], “profound childhood deprivation” [44] and a “childhood exposure to extreme violence and alcohol abuse” [44].

[76] The references in the psychologist’s report to “social and economic disadvantage”, and further, hardship and disadvantage, could only relate to the period from the age of 14 when it appears the offender commenced using drugs and engaged in antisocial activity. Similarly, references to social disadvantage and housing instability could only relate to the period in his later teenage years. Whilst acknowledging the impact of the circumstances of his father’s passing, this occurred when the offender was in his twenties by which time he had already engaged in significant criminal activity.

[77] The psychologist’s opinion that difficulties in emotional regulation were strongly linked to “early childhood trauma and poor attachment relationships” is not reflective of the offender’s early childhood experience. Whilst there is reference to his father being distant and absent, it is the evidence of the offender’s mother, supported by the offender’s own history to the psychologist, that the offender experienced a “good childhood” who felt cared and supported for by his mother.

[78] There is no evidence that the offender was raised in a home environment of the type discussed in Bugmy. I do not accept the offender’s submission that the Bugmy principles are engaged.

[79] However, this is not to detract from the fact that the offender suffered from a Cluster B personality, as well as emotional dysregulation. In addition, I accept that the offender suffered sexual abuse whilst incarcerated as a juvenile which had the consequence of the offender suffering post-traumatic traumatic stress disorder. I am satisfied that these conditions, together with the offender interacting with antisocial groups, led to the offender’s increasing use of prohibited substance and his inevitable decline into criminal activity. I accept that this had the consequence of the offender experiencing the housing instability and subsequent social disadvantage identified in the psychologist’s report. I further accept that his father’s passing lead to a further decline in the offender’s drug use and engagement in criminal activity.

[80] I am satisfied that these underlying disorders, identified in the psychologist’s report, were operating at the time of the offending such that the offender’s moral culpability is reduced with the consequence of reduced weight being afforded to punishment and deterrence: DPP (CTH) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2000) 244 CLR 120; DC v R [2023] NSWCCA 82 [74-76].

…

[82] I accept that whilst the offender being under the influence of illicit substances at the time of the offending is not a mitigating factor (s 21A(5AA) of the CSPA), the offender’s early and continuing drug addiction does have its genesis in his underlying disorders as well as his financial and social deprivation commencing in his teenage years: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335.”

17. At [51] his Honour had noted the submission on behalf of Mr Cowan about his background and Bugmy:

“It was submitted that the background of the offender recounted in the psychologist’s report would be characterised as deprived such to engage the principles in Bugmy v The Queen (2013) 249 CLR 571. Whilst it was conceded that the offender’s family life was generally “prosocial”, his exposure to abuse at the age of 14 during incarceration, and his subsequent drug use, established a level of deprivation.”

Subjective material before the sentencing judge

18. His Honour summarised the relevant subjective material in his remarks on sentence, but given their significance to the ground of appeal we will consider the source material.

19. There was an affidavit of Coral Booth, a field officer with the Aboriginal Legal Service, about the attempts she had made on behalf of Mr Cowan, at his request, to find him an appropriate residential rehabilitation place, and her statement that he had remained dedicated to obtaining assistance through a residential rehabilitation service.

20. There was a doctor’s referral dated 18 October 2021, noting Mr Cowan’s previous diagnoses of bipolar, psychosis and depression in the context of multi-substance use, his reported “emotional lability” and disrupted sleep, that he continued to use drugs and was considering inpatient rehabilitation.

21. In an affidavit dated 17 February 2025 Cheryl Cowan, Mr Cowan’s mother, said the following. Mr Cowan grew up with her until he was around 21 years old. Two of her children were doing well, but Mr Cowan and her oldest son had both had issues with drugs and alcohol throughout their adulthood. She said “the kids had a good childhood. Their dad drank alcohol but he tried to keep it out of the house as much as possible. I don’t know why things ended up so differently for them.” She said Mr Cowan was quiet at home but got into trouble at school, and by the time he was in “about year nine” he had missed so much school and was not interested so they “pulled him out of school”. She said that Mr Cowan “started getting into trouble with the police and I never really knew what was going on or why that started. I supported him as much as I could, but his dad always had the attitude of ‘You got yourself into trouble, you can get yourself out of it.’” She said she felt that something happened to Mr Cowan because at one point “things changed, his mental health was much worse and [she] started to notice his behaviour change and suspected drugs.” She said “I never really knew when the kids were doing drugs, I stayed away from that stuff myself. But when I look back, I realise that the drug usage must have started pretty young for Josh.” She said Mr Cowan “went into custody when he was a kid and around that time, and the time he left school his behaviour started to change. He was out of the house more, staying other places, he kept to himself more and he was hanging with kids that were getting in trouble. His mental health was bad. I think he started using harder drugs at that time.”

22. Ms Cowan said that in his early 20s when Mr Cowan had his first girlfriend and they had two sons he was “his old self for some time” and “a good dad”. He had a job as a worker at Oolong House Rehabilitation Centre and was doing well. A few years later he began “hanging with some people that were a bad influence” and things went downhill; he began using heavy drugs and his relationship broke down. Ms Cowan confirmed that when Mr Cowan’s father died, she had to make the decision to stop resuscitation. Mr Cowan was not at the hospital when the decision was made and he never forgave his brother for that decision, his brother having passed the message to hospital staff. She said she had tried to help Mr Cowan into a number of rehabilitation places but they had never worked out.

23. A report by psychologist Dr Clara Fritchley, dated 7 February 2025, contained the following. Mr Cowan was assessed by audiovisual means for two hours which included an interview and psychometric testing. Mr Cowan described his early life as “ok”. He said his father worked as a youth worker during his early childhood and then on a golf course, while his mother worked in an Aboriginal women’s centre. He said he had a “good” relationship with his mother who was “always there for us”. He reported that his relationship with his father was more distant, in part because his father was often absent or emotionally disengaged. He described his father sitting outside every evening after work having beers with family members and friends. Mr Cowan told Dr Fritchley that he was exposed to arguing between his parents, but denied being exposed to ongoing family violence, saying that physical fighting between his mother and father happened on only a few occasions. Mr Cowan denied being exposed to physical, emotional or sexual violence during his early childhood. He said he had a large extended family network and felt a strong connection to his community and culture.

24. Mr Cowan described his father having died over 15 years before, after suffering a heart attack. He said he was called after his father was taken to hospital and by the time he arrived at the hospital his father had died. He blamed his brother for his father’s death as his brother had told the hospital staff to discontinue resuscitation efforts. He said this intense anger towards his brother caused him to behave in aggressive ways towards him, which led to conflict within the family and an apprehended violence order being taken out against him to prevent him having contact with his family. His relationship with his family was reportedly distant and strained for many years after this, although it has improved since he was remanded in custody in respect of the offence for sentence.

25. Mr Cowan reported to Dr Fritchley that his father was a heavy alcohol drinker, drinking every day after work, and his oldest brother had struggled with drug dependence.

26. Mr Cowan described “doing Ok” in primary school, but said when he commenced high school he began to experience difficulties engaging in academic work though he continued to do well in sports. He said he left high school at the age of approximately 14 years when he was taken into custody, and upon his release from custody he did not return to school.

27. Mr Cowan told Dr Fritchley that he first left his family home at the age of 14 when he was incarcerated as an adolescent. He said he was “hanging around with the wrong people” and “got caught up” in antisocial activities. He said he spent a few months in juvenile justice custody and was sexually assaulted during that incarceration. On his release from custody he returned to live with his parents and attempted to re-engage in activities he had previously enjoyed, such as rugby, but his drug use accelerated rapidly and made that difficult.

28. He described a positive period in his early 20s when he had a relationship with a woman and their two sons were born. He said he enjoyed fatherhood and he stopped drug use and focused on his family. During that time he completed a rehabilitation program at Oolong House and thereafter worked there as a mentor.

29. He said that when his grandmother died his mental health began to deteriorate. Then his father died and he used drugs to cope with his grief. His relationship broke down and he became estranged from his children. He said that he began “roaming” and “living on the streets”. He said he was homeless for approximately 12 years, mostly living on the streets, staying with friends for short periods and at times incarcerated.

30. Mr Cowan told Dr Fritchley he began to use alcohol and cannabis at the age of 14, having been introduced to them by friends. He said his use of substances began to escalate after his period in juvenile custody. He said by his mid-teens he was smoking cannabis daily and drinking alcohol regularly. He began using “ecstasy” every few days. He said his drug use continued to escalate into his early 20s and he began smoking crystal methylamphetamine. His pattern of substance use continued until his early 20s when he met his partner, attended Oolong House, stopped cannabis use, significantly reduced his use of crystal methylamphetamine, ecstasy and alcohol and was focused on raising his two sons. He resorted to drug use as a way to cope after the deaths of his grandmother and father. He said he had engaged in treatment for his substance use on a number of occasions.

31. Dr Fritchley reported:

“Mr Cowan began having behavioural difficulties in early adolescence, spending time with a peer group that was involved in antisocial activities. This led to incarceration as an adolescent. He said that during this time he was sexually assaulted and upon his release from custody his drug use accelerated, in part, as a way to cope with his emotional distress. Since this time Mr Cowan has been exposed to multiple traumatic events, including the deaths of people close to him, witnessing people close to him overdose, and physical violence.”

32. Mr Cowan reported to Dr Fritchley high levels of anxiety, which could escalate into panic attacks, ongoing and chronic symptoms of low mood, past psychotic symptoms, and “severe difficulties with emotion regulation”.

33. Dr Fritchley noted a psychiatric report prepared by Dr Gerald Chew for the purpose of assessing Mr Cowan’s fitness to stand trial, in which Dr Chew had identified that Mr Cowan was diagnosed with Cluster B personality in the context of developmental adversity, childhood sexual abuse and substance use disorder. On testing by Dr Fritchley, Mr Cowan’s scores placed him in the extremely severe range for depression, anxiety and stress, consistent with his self-report.

34. Dr Fritchley noted Mr Cowan’s report of his childhood, and that his “transition through adolescence appears to have been difficult”, that being when he connected with an antisocial peer group and was introduced to drugs and crime within that peer group.

35. Mr Cowan told Dr Fritchley that leading up to the offence he had been using crystal methylamphetamine and alcohol and had not slept for days.

36. In response to a question from Mr Cowan’s solicitor “Whether his exposure to any childhood disadvantage or social isolation would have compromised his capacity to mature and learn from experience”, Dr Fritchley said “It is difficult to definitely answer this as Mr Cowan did not outline his childhood experiences in detail, nor perceive that they had a negative impact upon him. Certainly Mr Cowan has however displayed extreme difficulties in emotion regulation from adolescence [and the basis of such difficulties is strongly linked to early childhood trauma and poor attachment relationships with caregivers].” The latter part of that sentence appeared to be Dr Fritchley’s summary of psychologists’ experience generally and not specific to the evidence about Mr Cowan’s early childhood. Counsel for Mr Cowan before Judge Fitzsimmons SC acknowledged that Mr Cowan had a “pro-social” life before the age of 14. Judge Fitzsimmons SC said (at [77]) that “early childhood trauma and poor attachment relationships” did not reflect Mr Cowan’s early childhood experience.

37. In answer to a question from Mr Cowan’s solicitor about “The relationship, if any, between the offending conduct and Mr Cowan’s background” Dr Fritchley said “As stated above, it is difficult to assess the relationship between Mr Cowan’s offending and early life. It is my opinion however, that his offending behaviour is strongly linked to his social disadvantage, housing instability, isolation from a prosocial support network, very poor mental health, with the most salient risk factors on the day [of] the offending being his severe intoxication and connection with an antisocial peer group.”

Counsel’s submissions in the sentence proceedings

38. As noted at paragraph [51] of the remarks on sentence, at paragraph [17] above, counsel for Mr Cowan in the District Court submitted that his background as described by Dr Fritchley was such that the Court could properly characterise it as “deprived” such as to engage the principles in Bugmy.

39. In oral submissions before his Honour, when his Honour raised the description of Mr Cowan’s “good childhood” in his mother’s affidavit and the history reported by Dr Fritchley, counsel for Mr Cowan accepted that his family life was prosocial and accepted that the evidence did not support that he was disadvantaged all through his life until the age of 14 but submitted that his experience thereafter, particularly his 12 years of homelessness, could be described as social disadvantage; and relied on Dr Fritchley’s opinion that Mr Cowan’s offending behaviour was strongly linked to “social disadvantage, housing instability, isolation from a prosocial support network, very poor mental health and severe intoxication and an antisocial peer group”.

The Crown’s submissions in the District Court

40. In relation to Mr Cowan and a co-offender, the Crown prosecutor, in written submissions, said “it seems as though they may not appreciate the significance of some of the negative anti-social experiences in [or] from their younger years. Their background of deprivation may reduce their moral culpability but not significantly so given that this was premeditated and targeted violence”. He quoted from Bugmy then said “Here, Mr Cowan’s does not report exposure to extreme violence. Nor could it be reasonably be said that his offending on this occasion was an inability to control a violent impulse in response to a frustrating situation.”

41. In oral submissions the Crown prosecutor said:

“In relation to the background of each of the offenders, your Honour, the submission advanced is essentially identical. Each of the offenders regrettably comes from a background that your Honour would consider to be disadvantaged.

However, the principles which your Honour needs to apply are those set out, obviously, in Bugmy v The Queen. But the emphasis on which your Honour reduces moral culpability might be limited in a case such as this because this is, as the Crown was saying, premeditated, targeted violence as opposed to an inability to control one’s frustrations and responding in a violent way. That’s not to say that your Honour should be ignoring the backgrounds of these men, but the principle identified in the decision in Bugmy is not specifically engaged with the force they would have had in Mr Bugmy’s case.”

Submissions on appeal

42. Both senior counsel for Mr Cowan and counsel for the Crown referred to the High Court’s decision in Bugmy, the decision of Yehia J in NK v R [2025] NSWCCA 73 (‘NK v R*’) at [110] – [113], with which Ball JA and Fagan J agreed, and the decision in Hoskins v R [2021] NSWCCA 169 (‘Hoskins’**)*.

Submissions on behalf of Mr Cowan

43. Senior counsel for Mr Cowan submitted that the Bugmy principles relevant to Mr Cowan’s case were that there is no requirement that the deprivation be profound or sustained, that there be a causal link between the background and the offending for moral culpability to be reduced, that the offending need not be impulsive, and evidence of planning will not necessarily be a barrier to the application of the principles.

44. Senior counsel submitted that while his Honour was correct to say that the evidence suggested that Mr Cowan’s upbringing, at least until the age of 14, was relatively good, his Honour’s focus on the years before Mr Cowan turned 14 involved misapplication of principle. Further, he submitted that his Honour’s statement that there was “no evidence that the offender was raised in a home environment of the type discussed in Bugmy” did not accurately reflect the evidence before the court.

45. Senior counsel referred to the decision in Hoskins, in which Mr Hoskins, after an upbringing he described as “excellent” with an aunt and uncle he believed were his parents, discovered his mother’s true identity at the age of 13, and went to live with her, and with the combination of her lack of supervision and his family members engaging in criminal behaviour such that it was normalised, Mr Hoskins began to commit offences.

46. Senior counsel relied on the statements of Brereton JA in Hoskins at [61]:

“These differences, however, do not affect the essential point that exposure as a child to the influence of an extended family involved in a criminal milieu is relevant, because it can warp a child’s moral compass and create conditions in which anti-social behaviour becomes normalised. In my opinion, this is just as true, if not more so, when aged thirteen to sixteen as at earlier ages: the years of adolescence are in many respects formative.”

47. And at [63] – [64]:

“[63] …his Honour’s remarks on sentence … focus on his childhood until the age of twelve, and do not consider what happened thereafter. An upbringing does not end at twelve.

[64] In my view, the momentous discovery that those in whose care he was initially raised were, contrary to his then life view, not his parents; the inevitable identity issues that would have resulted; the applicant’s experience following return to his biological family from age thirteen onwards, including “acting out” to fit in with his biological family and his exposure to their anti-social ways; and his introduction to the use of alcohol in that environment, are circumstances amounting to social disadvantage which, consistently with Fernando and Bugmy, bear on the assessment of the applicant’s moral culpability for the offending of 31 January 2019, particularly given the association of that offending with alcohol abuse, and the origins of that abuse in the period after he moved to live with his mother.”

48. Senior counsel submitted that the evidence before Fitzsimmons SC DCJ, particularly in the report of Dr Fritchley, showed that Mr Cowan’s father was emotionally distant; Mr Cowan was exposed to heavy alcohol consumption by adults and witnessing arguments with occasional violence between his parents; his oldest brother had struggled with dependence on drugs, which predated Mr Cowan’s own commencement of drug use; at age 14 he began to associate with antisocial peers and was introduced to drugs by them; he was truanting from school and was not interested in school such that by year nine his parents “pulled him out” of school; his mother tried to support him but his father’s attitude was that he had to fix his own mistakes; and he was sexually abused in juvenile detention.

49. Senior counsel submitted that these events happened in the formative period of Mr Cowan’s adolescence, and that Fitzsimmons SC DCJ acted upon wrong principle by confining his consideration of Mr Cowan’s life to his younger childhood. He submitted that disadvantage and exposure to negative influence in a person’s teenage years should enliven Bugmy principles, and that Mr Cowan’s experience of permissive parenting while he enmeshed himself with anti-social peers at the age of 14 was a “level of disadvantage for him”.

50. Senior counsel submitted that his Honour misstated the facts when he said there was no evidence to support the application of the Bugmy principles.

51. Counsel also submitted that his Honour erred in that the Bugmy principles are not confined to the “home environment”, but to the fact of the child’s exposure to trauma and disadvantage, not the source of such exposure.

52. Senior counsel submitted that his Honour applied the Bugmy principles too narrowly, erroneously confining them to disadvantage in early childhood years and in the home.

53. Counsel submitted that although his Honour found that the factors relied on reduced Mr Cowan’s moral culpability pursuant to the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (‘De La Rosa’) (in paragraphs [79] and [80] in the remarks on sentence), there should have been a further reduction in moral culpability by the application of the Bugmy principles and the De La Rosa principles.

The Crown’s submissions

54. The Crown submitted that his Honour did not misapply principle, but that his Honour’s finding of fact that Mr Cowan’s background did not reduce his moral culpability pursuant to Bugmy principles was reasonably open to him on the evidence. The Crown submitted that his Honour considered the evidence of Mr Cowan’s background in detail, and that the evidence did not disclose that violence was normalised for Mr Cowan or that his drug and alcohol use were permitted by his parents, or in his home, or that he knew of his brother’s drug use or used drugs with his brother at the relevant times.

55. The Crown accepted, as Brereton JA said in Hoskins, that a person’s upbringing does not end at 12 years old and an assessment of a person’s background is not limited to that period.

56. The Crown submitted that contrary to Mr Cowan’s assertion that he was sexually assaulted in custody at the age of 14, his juvenile custody record showed he first entered detention in 1999, when he would have been 16.

57. The Crown submitted that his Honour’s finding that “there was no evidence the applicant was raised in a home environment of the type discussed in Bugmy” was open to him on the evidence about Mr Cowan’s home from his mother and himself. The Crown submitted that his Honour did not put undue weight on Mr Cowan’s home environment and Mr Cowan accepted in the District Court and in this appeal that his home environment was positive and prosocial until he was about 13 or 14 and that his home environment did not change.

58. The Crown submitted that the sentencing judge took all aspects of Mr Cowan’s background into account, including his exposure to negative influences outside his family home, his teenage adverse experiences and his homelessness in his 20s, and concluded that they reduced his moral culpability for his offending.

59. The Crown submitted that if the Court found error and that the Bugmy principles apply to Mr Cowan, the Court would need to decide whether his moral culpability was reduced, and since his Honour had already taken Mr Cowan’s background into account to reduce his moral culpability there would not necessarily be a further reduction of his moral culpability.

The Bugmy principles

60. In Bugmy v The Queen French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:

“[40] …The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

…

[43] The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. 66 An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

61. In [41] their Honours said:

“[41] …In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.”

62. In NK v R Yehia J, with whom Ball JA and Fagan J agreed, said:

“[100] The assessment of moral culpability is made by reference to matters subjective to an offender. That assessment is not made by a consideration of factors removed from an offender’s subjective circumstances. An offender’s moral culpability may be reduced by reason of a background of deprivation, mental health conditions and youth. In some cases, there will be an interplay between several subjective factors that may have a cumulative effect on the reduction of moral culpability.

[101] It is incumbent upon a sentencing judge to first assess whether that background operates to reduce the offender’s moral blameworthiness for the offending. For example, the exposure to domestic and family violence or alcohol and drug use, during an offender’s formative years, may operate to normalise that conduct such as to have an impact upon their capacity to reason, appreciate the full wrongfulness of their actions, control their conduct, understand the consequences of their offending, and may impair their capacity for emotional regulation, and increase immaturity and impulsivity.

[102] A sentencing judge is then required to consider how the offender’s reduced moral culpability, and the reason for that reduction, bears upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution and promotion of rehabilitation: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [92]-[93] (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ). A reduction in moral culpability may also have an impact upon other sentencing considerations including but not limited to a finding of special circumstances.

[103] A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 per Dhanji J at [89] (Simpson AJA and Ierace J agreeing) …

…

[110] In my view the correct application of the Bugmy principles involves the following considerations. Firstly, a sentencing judge must make an assessment of whether an offender’s background reduces their moral blameworthiness, bearing in mind that the High Court in Bugmy said, “ … a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending” (at [43]).

[111] This assessment is made by reference to matters subjective to the offender. An offender’s moral blameworthiness cannot be assessed by reference to factors unrelated to an offender, such as the purposes of sentencing.

[112] Secondly, if moral culpability is reduced, a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. For instance, a reduced moral culpability may mean that the extent to which the conduct is denounced is less than in a case where the offender has a “normal” or “advantaged” background. On the other hand, the reduction in moral culpability may be offset by the weight afforded to general deterrence and/or the protection of the community.

[113] Thirdly, even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more purposes of sentencing, an offender’s background of disadvantage must be given “full weight” in “every sentencing decision”: Bugmy at [44].”

Consideration

63. We accept, as Brereton JA said in Hoskins, that a person’s formative years include his adolescence.

64. We are not persuaded that his Honour erred by narrowly confining his consideration of Bugmy principles to Mr Cowan’s “home environment” at [78]. We consider that expression was a response to the evidence presented to his Honour.

65. His Honour fairly took into account Mr Cowan’s background of abuse in his teenage years, his consequent post-traumatic stress disorder, which led to his increasing drug use, and his homelessness and subsequent social disadvantage, as reducing his moral culpability such that reduced weight was given to punishment and deterrence in sentencing him, at [79] – [80]. His Honour’s finding that Mr Cowan’s early life did not enliven the Bugmy principles was reasonably open on the evidence presented in this case. His Honour did what Bugmy requires sentencing judges to do, by taking account of Mr Cowan’s background to reduce his moral culpability, even though he did so by applying the De La Rosa principles. That was not an error in this case. There were no matters in Mr Cowan’s background, additional to those taken into account by his Honour, which required a further reduction of his moral culpability pursuant to Bugmy principles. His Honour was not required in this case to take the same factors into account twice under Bugmy and De La Rosa principles. Evidence of a background of deprivation and disadvantage and of mental health conditions may give rise to a cumulative reduction of moral culpability if the evidence so requires and permits. This was not such a case.

66. His Honour did not err as was asserted on behalf of the applicant. Therefore we would grant leave to appeal, but dismiss the appeal.

67. Therefore we make the following orders:

68. Grant leave to appeal.

69. Dismiss the appeal.

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